FAHIM AHMED SIDDIQUI, J.---The petitioners are belonging to medic al profession and performing their jobs as doctors in Civil Hospital Tando Allahyar . They have challenged the lodgment of FIR being Crime No.95 of 2017 at Police Station A-Section Tando Allahyar under section 322, P.P.C. and have sought quashment of the same by preferring the instant petition.
2. The factual matrix of the case is that respondent No.2 being, complainant of aforementioned FIR, reported to police that on 19.08.2017, his brother Manthar Ali was suffering from some asthmatic disorder , as such, he was immediately taken to Civil Hospital Tando Allahyar . When he reached in the emergency ward of the hospital, he found that doctor was missing. On enquiry , it came to his knowledge that duty medical officer Dr. Rasheed Shaikh (petitioner No.2) was sitting in the office of Medical Superintendent, where he was contacted and requested to attend the patient. The petitioner No.2 informed the respondent No.2 that he could do nothing as oxygen is not available and directed him to take the patient to a private hospital belonging to petitioner No.l. The petitioner No.1 got ECG report of the brother of respondent No.2 and informed him that there is something wrong with artery of heart for which some injection was required but the same was not available. The petitioner No.1 advised respondent No.2 to take his ailing brother to. Hyderabad and in the way to Hyderabad, he expired.
3. The respondent No.2 then approached to the Sessions Court and after getting an order , he succeeded in lodging the aforementioned FIR involving the petitioners as offenders of unlawful act of criminal negligence and causing death of his brother Manthar Ali.
4. We have heard the arguments advanced by either side and gone through the record available before us. It is contended by the learned counsel for the petitioner that in the case of medical negligence, the only remedy available to the respondent No.2 is to approach the Sindh Health Care Commission, which has jurisdiction in such cases under the law. He submits that as per provision under Section 29 of the Sindh Health Care Commission Act, 2013, the act of lodging of FIR is not permissible as under the said Section immunity has been provided to the person of medical profession. He further submits that proper course available to the aggrieved person in respect of medical negligence is to approach the Health Care Commission, which is the only body in the Province to deal with such matters. In response to a query , he frankly admits that a legal proceedings and even criminal case may be initiated against the medical officer provided that he has been held responsible/guilty by appropriate forum i.e. Sindh Health Care Commission.
5. On the other hand, the learned counsel for the respondent No.2 submits that respondent No.2 has no objection if the matter is referred to Sindh Health Care Commission with direction that if the negligence of the petitioners is established then the Health Care Commission may refer the case to the trial Court and trial be initiated accordingly .
On such suggestion, learned counsel for the petitioner submits that some reasonable time be given to Health Care Commission for deciding the matter and whatever the result or an opinion of the Health Care Commission, the same may be transmitted to the trial Court and if the Health Care Commission declare that the petitioners are innocent then they may file appropriate application before the trial Court for their acquittal.
6. It is appropriate to point out that the FIR against the petitioners is lodged under section 322, P.P.C., which deals with Qatl-bis-sabab. The definition of the Qatl-bis-sabab is given under section 321, P .P.C., which is as under: - "Whoever , without any intention to cause death of or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit qatl-bis-sabab".
7. We are of the view that if the death of the brother of respondent No.2 was caused due to criminal negligence then the same is certainly an unlawful act for which provision of section 322, P.P.C. may be attracted. Nevertheless, the petitioners are belonging to medical profession and the test of medical negligence has been laid down in a case reported as "Bolam v. Firern Hospital Management Committee" reported in 1957(2) All England Law Reports 118, wherein the House of Lords formulated the Bolam Test which is as under:-- "A medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in the particular art"
8. In the light of Bolam Test for medical negligence and all the facts in hand, we are of the view that in the Province of Sindh, a forum is available in the shape of Sindh Health Care Commission, which is a body constituted under the Sindh Health Care Commission Act, 2013 (Sindh Act No.VII of 2014) to determine whether the petitioners have committed medical negligence as defined in Sindh Health Care Commission Act, 2013. Hence, we refer the instant matter to Sindh Health Care Commission as per provision under section 4(6)(d) of Sindh Health Care Commission Act, for an inquiry/investigation. It is further directed that whatever the result of such inquiry/investigation may be, the commission shall transmit the same to the trial Court, where the trial of Crime No.95 of 2017 of Police Station A-Section Tando Allahyar is pending. The Health Care Commission shall complete this task within a period of one
(01) month and transmit its report accordingly . Till conclusion of such inquiry/investigation, the trial of said crime shall remain suspended.
With these observations these petitions stand disposed of accordingly .